Court ruling pitting Uhuru against the CJ was uncalled for

Chief Justice Martha Koome.

Before 2010, governance in Kenya was largely associated with the unbounded exercise of State power by the President. The need to tame presidential power became a rallying cry that informed the quest for a new constitution.

During the Constitution-making process, there was heated debate on the appropriate system of government between parliamentary, semi-presidential and presidential systems to fit the Kenyan context.

While Kenyans wanted the Head of State and Government tamed, they also insisted they needed to elect the person to exercise ultimate public power within the polity. This led to the adoption of a “pure” presidential system of government.

In the 2010 Constitution, the President was given powers, but other bodies were provided with countervailing powers to oversight the President’s exercise of authority. Chapter 9 of the Constitution provides a clear mechanism to hold the President to account for failure to discharge his or her constitutional obligations. Article 145 of the Constitution expressly vests the Legislature with the tool of removal of the President by impeachment.

Courts should not create other avenues to deal with instances of an alleged violation of constitutional obligations by the President. In the ongoing row over President Uhuru Kenyatta’s decision not to appoint six judges recommended for appointment to the Court of Appeal and the Environment and Land Court, the High Court has usurped the President’s power to appoint judges and handed over this power to the Chief Justice. The High Court has allocated itself the unfortunate call to force the Chief Justice to violate the Constitution that she is sworn to protect and uphold. This is contrary to the tenets of separation of powers.

The correct approach is for the High Court to make a declaration that the President has breached his obligations and let the Legislature hold the President to account. In bypassing this, the High Court stymies Parliament’s oversight and unnecessarily usurps the President’s mandate by handing the appointment role to the Chief Justice. The High Court could have borrowed good practice from Benin. On October 2nd 2000, the Constitutional Court of Benin adjudicated a similar dispute in case DCC 00-054 and held that where the President is vested with the power of appointment of judges, an expressed account by the President is required and silence cannot constitute approval to appoint.

The High Court of Kenya ought to have avoided the unnecessary pitting of the President against the Chief Justice. Courts engaging in constitutional adjudication must avoid what has been denounced by Kate O’Regan, a former Judge of the Constitutional Court of South Africa as the “jurisprudence of exasperation”.

While courts might be legitimately frustrated with a state of affairs, they must be patient and embrace a “jurisprudence of accountability” that respects the separation of powers.

The writer is a lawyer